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Marianne Salih, a partner at Edward H. Royle and Partners LLP

Ontario Court of Appeal upholds drug trafficking conviction despite 10(b) Charter breaches

Monday, January 18, 2021 @ 2:37 PM | By Michael McKiernan

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Ontario’s Court of Appeal has upheld a man’s drug trafficking conviction despite multiple breaches of his right to counsel during the execution of a search warrant.

In R. v. Pileggi 2021 ONCA 4, a three-judge panel unanimously agreed that the appellant Alceste Pileggi’s 10(b) Charter rights were infringed when police attempted to elicit evidence from him before he could retain counsel, failed to facilitate contact with his chosen lawyer and then delayed putting him in touch with duty counsel for more than three hours.

Still, the province’s top court declined to exclude any of the evidence obtained during the search under s. 24(2) of the Charter, concluding that its admission would fall short of bringing the administration of justice into disrepute.

“The failings of the police were situation-specific, but serious nevertheless. However, the evidence was discovered by virtue of a properly issued search warrant that police executed in a reasonable manner,” reads Appeal Court Justice Gary Trotter’s Jan. 7 judgment, concurred in by Justices David Doherty and Katherine van Rensburg. “In these circumstances, exclusion of the evidence would only serve to indirectly punish the offending officers, rather than aligning with the overall purpose of s. 24(2) — vindicating the long-term repute of the criminal justice system.”

 Marianne Salih,Edward H. Royle and Partners LLP

Marianne Salih, Edward H. Royle and Partners LLP

The decision bucks a recent trend at the appellate level, according to Toronto criminal lawyer Marianne Salih.

“The Court of Appeal has come out with numerous pronouncements on 10(b) violations in the last couple of years, and in virtually all of them, they’ve excluded the evidence under s. 24(2),” explained Salih, a partner at Edward H. Royle and Partners LLP who was not involved in the Pileggi case.

“But when you read the decision overall, the court is clear that this case is distinguishable from others where 10(b) violations warranted exclusion. Ultimately, it’s a very fact-specific inquiry,” she added.

Indeed, the panel in Pileggi referenced a number of the Appeal Court’s previous decisions, concluding that the case before it lacked “some of the aggravating features” seen in cases such as R. v. Rover 2018 ONCA 745 — where police intentionally delayed access to counsel for six hours as part of a protocol — and R. v. Noel 2019 ONCA 860 — where police carelessness allowed a detained man’s request for a lawyer to slip through the cracks.

According to the decision, nine officers conducted the raid on Pileggi’s basement apartment on May 3, 2017, after the Ontario Provincial Police obtained a warrant based on information from a confidential source suggesting he was selling oxycodone.

After a seven-minute safety check, Pileggi was informed of his right to counsel and sought to exercise it, but it would be another three and a half hours before he saw a lawyer at the police station. Meanwhile, officers seized a large number of oxycodone pills, a kilogram of cocaine, drug paraphernalia and some cash found at the man’s home.

At his 2019 trial, Pileggi was convicted of a single count of possession of cocaine for the purpose of trafficking after Superior Court Justice Annette Casullo rejected a multipronged Charter challenge designed to exclude the evidence obtained under the warrant for alleged infringements of his rights under ss. 8, 9 and 10.

The s. 8 allegations related to the nature of the search warrant execution, but the Appeal Court agreed with the trial judge, who found that the no-knock forced entry was justified because of safety concerns and the risk of evidence destruction if officers first announced their arrival.   

The appellate court also upheld the trial judge’s decision to dismiss the s. 9 complaint, finding that Pileggi’s handcuffing at home and in transit to the police station was reasonable and did not amount to arbitrary detention.

However, the appeal panel departed from the trial judge on Pileggi’s 10(b) claims, concluding that his rights were in fact infringed when a police officer at the station asked whether he’d like to reveal where anything was in the home. This was a breach of the police’s duty to hold off questioning, the Appeal Court found, even though Pileggi declined to answer and the officer in question did not know whether or not he had been advised of his right to counsel.

“[I]t was the purpose of his question, and not the response, that violated the duty to hold off. The fact that the question did not yield any inculpatory evidence does not neutralize the Charter breach,” Justice Trotter’s decision reads.

In addition, the appeal panel found a second 10(b) violation arose out of the police’s failure to facilitate contact with Pileggi’s counsel of choice, combined with the lengthy delay in connecting him with another lawyer.

A detective at the scene of the warrant execution told Pileggi he would phone his father with a view to contacting a lawyer, but the decision says a communication breakdown meant nobody had actually placed the call by the time the detective arrived back at the station three hours later, by which time Pileggi had agreed — but was still waiting — to speak to duty counsel.

When it came to its s. 24(2) analysis, the Appeal Court panel concluded that the seriousness of the Charter breaches was not reflected in their impact on the appellant, who was kept apprised of police progress to connect him with a lawyer.

“Ultimately, the admission of the evidence would enhance the truth-seeking function of the trial. Its exclusion, based on constitutional violations that were only vaguely connected to its discovery, would damage the repute of the justice system,” Justice Trotter’s decision reads.

Criminal lawyer Michael Kruse says he was not surprised by the ruling.

“Right to counsel is one of — if not the most — important rights we have, and a breach of it will often result in the exclusion of evidence, but this wasn’t the right case,” said Kruse, principal at Kruse Law. “All in all, there was no direct, causal connection between the discovery of the evidence and the breach.”

He acknowledged police have a tough job fulfilling their duties under 10(b), but adds that this decision shows there is room for improvement.

“The police have to communicate effectively with accused persons and with each other to make sure they’re doing the right thing first time,” Kruse said.

Counsel for both the appellant and the Crown declined the opportunity to comment.